Bribery case part of cancerous trend in political prosecutions

There is a rot spreading through the nation’s criminal justice system, and federal investigators and prosecutors in Arizona are showing symptoms of the disease. Prosecutors nationwide are bringing extraordinarily aggressive cases against Americans engaged in the political process, and federal prosecutors in Phoenix have recently concluded — and lost, due to a hung jury followed by a dismissal — a trial in which they accused four American citizens of a conspiracy to bribe a member of the Arizona Corporation Commission.

When judges and neutral jurors review the criminal charges presented by prosecutors in political cases across this country, they very often give prosecutors a failing grade. Consider the following examples:

Kory Langhofer

Thomas Basile

After former Alaska Sen. Ted Stevens was prosecuted on corruption charges, an independent investigation by the U.S. Department of Justice found the case was “permeated by the [government’s] systematic concealment of significant exculpatory evidence.”

The U.S. Supreme Court unanimously vacated the conviction of former Virginia Gov. Bob McDonnell on public corruption charges because “merely arranging a meeting or hosting an event to discuss a matter” is not a crime.

The U.S. Department of Justice dismissed corruption charges against New Jersey Sen. Bob Menendez in shame, after failing to persuade a jury of the senator’s guilt.

The court dismissed an indictment against former Texas Gov. Rick Perry. The indictment alleged that, by demanding revisions to pending legislation, Governor Perry committed a crime.

Former Vice President Dick Cheney’s chief of staff was convicted on charges of lying to federal investigators about his conversations with reporters — but those charges have since been discredited and the reporter in question has recanted her testimony after reviewing her notes.

A jury last year acquitted the former Utah attorney general of public corruption allegations grounded in routine fundraising activities before he took office.

Compare these outcomes to non-political cases. When charges are not based on political activities, the government has an almost insurmountable advantage and conviction rates exceed 90 percent. Political prosecutions are the outlier, suggesting that something is amiss.

But Arizona’s recent case may set a new low. Federal prosecutors skipped the investigation before flinging accusations; a stream of critical witnesses took the stand and denied being interviewed before the charges were filed. Prosecutors, who based their entire case on the testimony of a jilted lover, insisted that a modest monthly salary of $3,500 paid to a politician’s wife constituted a bribe — but the recipient of the funds had significant experience in her field of work, performed substantial services for the money, and similar jobs in the industry were compensated at similar levels. The funds weren’t paid as cash in a brown paper bag; they were paid by check and reported to the IRS.

That’s not a bribe — that’s a job.

The embarrassing end to the government’s case in Arizona was not particularly surprising — immediately after reading the indictment, we publicly warned against assuming the government could prove the allegations — but even with the dismissal, the message from federal law enforcement to politically active Arizonans is clear – with or without sufficient evidence, we’re coming for you.

— Kory Langhofer and Thomas Basile practice political and constitutional law in Phoenix. Langhofer is a former federal prosecutor.

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The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.

2 comments

The authors have missed the point here. The “rot” is not in prosecutors “bringing extraordinarily aggressive cases against Americans engaged in the political process”, as this article opines, but in a political and legal system that is designed to protect corruption. Rampant corruption now rife in politics is dependent on participants maintaining at least one missing link in the chain from request to payoff. Often this link is obvious, but still provides legal protection. The cited Arizona trial is a case in point. The utility was turned down for a rate increase. The utility owner then hired the lobbyist’s wife, who then hired the Corporation Commissioner’s wife. The Corporation Commission then granted a rate increase to the utility.
The connection between the salaries and the rate increase is at least believable, (perhaps obvious), but the prosecutors “failed to present any evidence connecting Pierce’s actions to the money paid to his wife” (azcentral article July 17, 2018). It is not that the “connections” don’t exist; it is that they are almost impossible to legally “prove”. The problem has to do with using legal “proof” as a criteria in political cases. Public servants should be held to higher standards. They have different duties than rest of us, and are by position extremely vulnerable to corruption. The appearance or possibility of corruption should be enough to warrant corrective action. So, to suggest that the “rot” comes from aggressive prosecutors, and not from a flawed political system, only helps to maintain the corruption.

The federal government believes that if something is unexplained, then it is criminal. A few years ago, the FTC pressured Bank of America into demanding that former Republican officeholders explain their wealth, or the bank would close their accounts. I left office with no savings and Bank of America was threatening to call the loan on my mortgage (that never had a late payment).

It wasn’t until Senator McCain intervened, did the FTC and B of A back down.

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